Hamburger on Murthy

Wednesday, July 10, 2024

Writing at RealClear Politics, free speech advocate Phillip Hamburger, argues that the recent Murthy decision by the Supreme Court makes the First Amendment "unenforceable against large-scale government censorship," and is thus "a strong contender to be the worst speech decision in the court's history."

Upon reading his piece, it is hard to disagree. Some of the reasoning is farcical, including the Court's stated fear that recognizing the rights of listeners would invite practically everyone to sue the government. But the cardinal sin would appear to be that the Court does not know or care what the word abridge -- used in the First Amendment -- even means.

The implications are grim:

It's like someone took this image literally... (Image by Jason Carswell, via Wikimedia Commons, license.)
... The court's disgraceful reasoning suggests that when the government censors a vast number of Americans, we lose our right of redress.

The greatest danger comes from the court's tolerance of the sub-administrative power that the government uses to corral private parties into becoming instruments of control. Administrative regulation ideally runs through notice-and-comment rulemaking. In contrast, sub-administrative regulation works through informal persuasion, including subtle threats, regulatory hassle, and illicit inducements. By such means, the government can get the private platforms to carry out government orchestrated censorship of their users.


[T]he court's tolerance of this sub-administrative privatization of censorship reverses the burden of proof. Government once had to prove to a judge and jury that a speaker's words were illegal. Now, instead, the speaker must prove that the government censored him.

What's more, there's no effective remedy...
I recommend reading the whole thing and sharing it widely.

-- CAV

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